Domestic violence punishment stiffened

Friday, Aug. 25, 2000 | 11:11 a.m.

CARSON CITY -- In a decision that mainly divided justices along gender lines, the Nevada Supreme Court has issued a ruling that will mean increased punishment for many convicted of battery involving domestic violence.

The split decision Thursday said convictions of this offense before Jan. 1, 1998, could be used to enhance the sentence to a felony. Justice Bill Maupin joined the three female justices on the court in handing down the decision in a Reno man's case.

The other three male justices dissented, suggesting the law was ambiguous and should be interpreted in favor of the individual, not the state. And they said the defendant had no notice his previous convictions could be used to stiffen the punishment.

The 1997 Legislature created the crime of battery constituting domestic violence, a misdemeanor. But the punishment increases with each conviction within a seven-year period. And the third conviction is a felony. The law took effect Jan. 1, 1998. And a section of the law said it did not apply to offenses committed before Jan. 1, 1998.

Justice Deborah Agosti, who wrote the majority opinion, said there were two interpretations of the law. But she added, "The Legislature intended as a matter of public policy that convictions of battery constituting domestic violence occurring before the law's effective date could be used for enhancement purposes."

The case involved Robert B. English, who was arrested in May 1998 for battering his live-in girlfriend, by throwing a platter of spaghetti at her, pushing her to the floor and trying to pinch her nose. He had previous convictions in February 1998 and September 1995.

Since it was his third offense in seven years, the charge was elevated to a felony, and he was sentenced to one to three years in prison.

In the appeal, English, through his lawyers, argued the law could be interpreted to have two meanings. And he said his 1995 conviction could not be used to increase the penalty from a misdemeanor to a felony.

Agosti said English could not show any reason why the Legislature would allow current habitual domestic batterers to avoid immediate enhancement penalties once the domestic violence enhancement law took effect.

"The law places repeat offenders on notice that they will be charged with a felony if their next charge of domestic battery constitutes a third offense," Agosti wrote.

Justice Myron Leavitt, in the dissenting opinion, said since this is a new law creating a crime, it must be interpreted narrowly and in favor of a defendant. He said the majority decision is not unreasonable. But this law is ambiguous.

Leavitt, with Chief Justice Bob Rose and Justice Cliff Young agreeing, said there was no notice that a simple battery that occurred before January 1998 could be used to enhance a battery that constitutes domestic violence into a felony.